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Ballard v. National Football League Players Association

United States District Court, E.D. Missouri, Eastern Division

August 18, 2015

CHRISTIAN BALLARD, et al., Plaintiffs,
v.
NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, et al., Defendants. NEIL SMITH, et al., Plaintiffs,
v.
NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, et al., Defendants

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[Copyrighted Material Omitted]

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          For Christian Ballard, Gregory Westbrooks, Joe Horn, Plaintiffs (4:14-cv-01267-CDP): Richard F. Lombardo, LEAD ATTORNEY, SHAFFER AND LOMBARDO, Kansas City, MO; Brett A. Emison, WENDT GOSS PC, Kansas City, MO; Charles R.C. Regan, Michael Thomas Yonke, YONKE LAW, LLC, Kansas City, MO.

         For National Football League Players Association, Raymond Lester Armstrong, III, Kevin Mawae, Defendants (4:14-cv-01267-CDP): David Louis Greenspan, Jeffrey L. Kessler, LEAD ATTORNEY, WINSTON AND STRAWN LLP, New York, NY; James G. Martin, LEAD ATTORNEY, DOWD BENNETT, LLP, Clayton, MO.

         For Neil Smith, Ladell Betts, Anthony Davis, Vaughn Booker, Ron Dugans, Sheddrick Gurley, Chad Johnson, Kendyll Pope, Corey Sawyer, Shevin Smith, Tarlos Thomas, Kevin Williams, Plaintiffs (4:14-cv-01559-ERW): Brett A. Emison, LEAD ATTORNEY, LANGDON AND EMISON, Lexington, MO; John G. Simon, LEAD ATTORNEY, THE SIMON LAW FIRM, P.C., St. Louis, MO; Kevin E.J. Regan, LEAD ATTORNEY, REGAN LAW FIRM, Kansas City, MO; Richard F. Lombardo, LEAD ATTORNEY, SHAFFER AND LOMBARDO, Kansas City, MO.

         For Tamarick Vanover, Plaintiff (4:14-cv-01559-ERW): Brett A. Emison, LEAD ATTORNEY, LANGDON AND EMISON, Lexington, MO; Kevin E.J. Regan, LEAD ATTORNEY, REGAN LAW FIRM, Kansas City, MO; Richard F. Lombardo, LEAD ATTORNEY, SHAFFER AND LOMBARDO, Kansas City, MO.

         For National Football League Players Association, Defendant (4:14-cv-01559-ERW): James G. Martin, LEAD ATTORNEY, DOWD BENNETT, LLP, Clayton, MO; David Louis Greenspan, WINSTON AND STRAWN LLP, New York, NY; Jeffrey L. Kessler, PRO HAC VICE, WINSTON AND STRAWN LLP, New York, NY.

         For Raymond Lester Armstrong, III, Kevin Mawae, Defendants (4:14-cv-01559-ERW): James G. Martin, LEAD ATTORNEY, DOWD BENNETT, LLP, Clayton, MO.

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         MEMORANDUM AND ORDER

         CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.

         These consolidated cases come before me on nearly identical motions to dismiss filed by the National Football League Players Association (" NFLPA" ) and two of its former presidents. The plaintiffs, who are former National Football League players and members of the NFLPA, brought counts based in fraud, civil conspiracy, and negligence. The fraud and civil conspiracy counts allege breaches of the duty of fair representation and so are completely preempted by section 9(a) of the National Labor Relations Act. The negligence counts require an interpretation of collective bargaining agreements, and they are resultantly preempted by section 301 of the Labor Management Relations Act. Both sets of preempted claims are untimely, and they will be dismissed. Finally, the plaintiffs assert a count for medical monitoring, which is derivative of the other counts and will also be dismissed. The defendants' motions will be granted.

         Background

         Plaintiffs are former players (collectively, " Players" ) for various National Football League (NFL) teams whose careers ranged from 1975 to 2012. They brought two separate cases against their union, the National Football League Players Association (NFLPA), and two of its former presidents, Kevin Mawae and Raymond Lester Armstrong, III (the " Individual Defendants" ).

         The Ballard case, No. 4:14CV1267 CDP, is a putative class action brought in this District by Christian Ballard (who played from 2011-2012), Joe Horn (1996-2007), and Gregory Westbrooks (1975-1981). The Smith case, No. 4:14CV1559 CDP, was brought in state court by thirteen players: Neil Smith (1988-2000), Ladell Betts (2002-2010), Anthony Davis (1993-2010), Vaughn Booker (1994-2002), Ron Dugans (2000-2002), Sheddrick Gurley (2002), Chad Johnson (formerly Chad Plummer, 1999-2001), Kendyll Pope (2004-2005), Corey Sawyer (1994-1999), Shevin Smith (1998-2000), Tarlos Thomas (2002), Tamarick Vanover (1995-1999, 2002), and Kevin Williams (1999-2001). Players in both cases assert nearly identical claims for fraudulent concealment, fraud, negligent misrepresentation, negligence, negligent hiring (against the NFLPA only), negligent retention (against the NFLPA only), medical monitoring, and civil conspiracy.

         The Smith defendants removed that case to this court, and the Honorable E. Richard Webber denied the Smith players' motion to remand. See Smith v. Nat'l Football League Players Ass'n, No. 4:14CV1559 ERW, 2014 WL 6776306, at *1 (E.D. Mo. Dec. 2, 2014), ECF No. 34. In that Order, Judge Webber held that the Smith players' claims for fraudulent concealment, fraud, and civil conspiracy were preempted by the duty of fair representation under the National Labor Relations Act. Judge Webber also found that the Smith players' claims for negligent misrepresentation were preempted under section 301 of the Labor Management Relations Act. Thereafter, the Smith case was transferred to me and consolidated with the Ballard case for pretrial purposes.

         In both the Ballard and Smith pleadings, the substantive allegations are nearly identical.[1] During their respective careers,

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Players suffered multiple repetitive traumatic head impacts and concussions during practices and games. These injuries were neither acknowledged nor treated while Plaintiffs were players. Players paid money throughout their careers to the NFLPA as association dues. The NFLPA assured Players they would protect them and owed them a fiduciary duty, stating that they would act in Players' best interests at all times. However, the NFLPA did not spend significant funds on research into ways to mitigate or prevent brain trauma, such as developing safer helmets, competition rules, or football equipment. The NFLPA also failed to certify medical personnel that treated NFL players, despite having a duty to do such.

         Players allege that the Defendants were in a superior position of knowledge, and they knew the dangers and risks associated with repetitive head impacts and concussions. They attained this knowledge from the NFLPA's own medical consultants and commissioned studies on the subject, the NFLPA's participation in the Retirement Board of the Bert Bell/Pete Rozelle NFL Player Retirement Plan, and the NFLPA's participation in the Mild Traumatic Brain Injury Committee. Despite that superior knowledge, the Defendants knowingly concealed the information from the Players and fraudulently misrepresented there was no link between head impacts and cognitive decline. The Players allege that these actions caused or contributed to cause Players to suffer long-term neuro-cognitive injuries, including dementia, depression, memory loss, and chronic traumatic encephalopathy (" CTE" ), a condition caused by repetitive sub-concussive and/or concussive blows to the head. The Players allege that by concealing or omitting information, the Defendants caused Players to ignore the need for treatment.

         In both cases, the NFLPA has filed nearly identical motions to dismiss, arguing that all the Players' claims allege that the NFLPA failed in its duty of fair representation and are thus preempted by the NLRA; that any duty beyond fair representation would necessarily emanate from the NFL-NFLPA collective bargaining agreements (CBAs) and, thus, are preempted by section 301 of the LMRA; and that the Players fail to state a claim. The Individual Defendants have also filed in both cases nearly identical motions to dismiss that incorporate the NFLPA's arguments as well as raise additional arguments, such as the absence of personal jurisdiction, that are tailored to their status as individuals.

         Discussion

         The Defendants rely on CBAs attached as exhibits to their supplementary briefing in support of their motions to dismiss. A motion to dismiss pursuant to Rule 12(b)(6) must be treated as a motion for summary judgment when matters outside the pleadings are presented and not excluded by the trial court. McAuley v. Fed. Ins. Co., 500 F.3d 784, 787 (8th Cir. 2007) (quoting Hamm v. Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d 941, 948 (8th Cir. 1999)). Where the extraneous documents are central to the plaintiff's case, such as the written contract in a contract dispute, the court may examine the documents in deciding a motion to dismiss. See Stahl v. U.S. Dep't of Agriculture, 327 F.3d 697, 700 (8th Cir. 2003) (citing Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002)). This is so even, where the relevant contract documents are attached as exhibits to the motion to dismiss instead of to the pleadings. See Rosenblum, 299 F.3d at 661. A court may also consider any documents of which it has taken judicial notice, such as those

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in the public record. Stahl, 327 F.3d at 700.

         The Defendants have requested that this court take judicial notice of the various CBAs that the NFLPA attached to its supplementary filings. Although the Players argue that I should treat the motions as motions for summary judgment under Rule 56, Fed. R. Civ. P., this is a case where analysis of the CBAs is necessary to decide whether a claim has been stated. I will take judicial notice of the CBAS.[2] Cf. Dent v. Nat'l Football League, No. C 14-02324 WHA, 2014 WL 7205048 at *2 (N.D. Cal. Dec. 17, 2014) (keeping motion as one to dismiss after taking judicial notice of CBAs where agreed by the parties and where necessary to rule on a Rule 12, Fed. R. Civ. P., motion).

         Legal Standards

         The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. When considering a Rule 12(b)(6) motion, the court assumes the factual allegations of a complaint are true and construes them in favor of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Matters of public record referenced in a complaint may be considered by the court in determining a Rule 12(b)(6) ...


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